The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1887-10-13
oUxsTrOs ANswERED.


S0D9xllutfOu
To the Editor Of the Appear !
There seems To be much interest felt In re-
| gard to the construction OF the clause OF the
| constitution under which the recent election
| was held. For this reason, and also because
I hive been frequently asked about 1t, |
have given the subject some investigation.
| The investigation was interesting, and has
developed some facts which seem TO have
been overlooked.
The clause Of the constitution Is Article
ri, Section 3, ms follows;
"Any amendment, or amendments, 10 this
| constitution may be proposed in the Senate
or House Of Representatives; and, II the
same shall be agreed to by a majority Of all
the members elected to each of the two
houses, such proposed amendment, or
amendments, shall be entered on their
Journals, with the yeas and nays thereon,
and referred Ia the General Assembly then
next N be chosen; and shall be published
six months previous 10 the time Of
making such choice; and II In the General
Assembly then chosen as aforesaid such pro-
posed amendment or amendments shall be
agreed 10 by two-thirds Of all the members
elected to each house, then il shall be the
duty of the General Assembly 10 submit
such proposed amendment or amendments
10 the people, In such manner and NJ such
times as the General Assembly shall pre-
scribe. And II the people shall approve and
mtify such amendment or amendments, by
n majority of all the citizens of the State,
voting for representatives, voting in their
favor, such amendment or amendments shall
become n part OF this constitution. When
any amendment or amendments 10 the CON
stitution shall be proposed In pursuance Of
the foregoing provisions, the same shall, at
each of said sessions, bc read three times ON
three several days In each house. The Leg
islaturc shall not propose amendments Ia
the constitution oftcncr than once In six
years"
Thus fur this section Of the present conSti-
tuition ngrces with the corresponding section
of the constitution Of 1891, except the pres
cnt constitution says the amendment or
amendments may be submitted at such times
as tho General Assembly may prescribe,
while that Of 1884 has II ut such time. This
seems not material. II may have been a
clerical error. Or probably the change was
made NJ that II two amendments were pro-
posed they might be submitted for ratilicn-
ton at different times. In the present con-
stitution there 10 added Ia this section the
following clause, not found In that Of 1884:
''rhc Legislature shall have the right at
any time, by law, 10 submit to the people
the question II calling u convention 10 alter,
reform or abolish this constitution, and
when, upon such submission, n majority Of
all the votes cast shall be IN favor Oi said
proposition, then delegates shall he chosen
nnd the convention assemble in such mode
and manner rs shall he prescribed"
II will be seen that In amending the con.
stitution without a convention three steps
nrc necessary:
I. A proposition IN either house Of the
Legislature, To be read three times on three
dificrcnt days, aud 10 be agreed To by n ma
jority Of all the members elected % each
house, the yeas aud nays to he taken, aud
with the proposed amendment To DO entered
upon the Journals aud referred Ia the Iegis.
laturc next 10 be elected. aud published for
six months before the election.
2. The proposed amendment must he
ngrccd 10 by two-thirds Of all the members
elected Ia each house Of this succeeding
Legislature.
These are the first two steps. and II will
be seen that gicat care Is taken. An idea
seems 10 prevail that the members Of the
Legislature In voting for amendments
simply vote In order that the people may
aftcrwnri vote. Hut 10 this view IL Is an
swcrcd that members yote under oath. lScc
that by their votes they agree 10 the amend
mcnt; and Ia agree Ia IL means active con
currcncc, aud not mere passive ncquiCsccnCc.
Cooke vs.. Gooch, o Hciskcll, 3lO)
20 much care having been taken ~ 10
those two steps, the argument ~ that
the people are presumed To ngrec
10 the amendment because n majority
of all their representatives first agreed
to H. aud then two-thirds Of
all elected, after the six months publication
Of the amendment And this argument
seems formerly 10 have had the effect, IN az
least two States, Arkansas aud Missouri, Ia
mako amendments thus agreed a. by the
legislatures parts of the constitutions. Re
Gently, however, these States have changed
IN this respect. In Delaware, only lcgisla-
tive concurrence h now required, The third
step II the submission ot the amendment Ia
the people for ratification. And here differ
cnt positions are taken. Judge llnmmund's
position, u I rcall u Alright, II that the
clause " sclf-contrudiciory. aud that no
amendment can be made under Il. Others
insist that the submission To the people can
be mndc only nj the time when representa-
tivcs nrc a. be elected. while Others say
that ~ the Legislature may tx the time they
may designate any time they choose. This
was the view of the present Legislature In
fixing September ~, and ! think this II
now the prevailing view. Aud if u be- cor
rect. IL would seem To follow that the amend.
mcnt must. NJ least. receive n vote equal la
u majority ~ those voting for representa-.
tiycs at the election preceding. held la No.
ycmhcr. 1855. Another view taken IN con.
STRUNG this section uf the constitution IL that
no negative vote N contemplated IN the sub.
mission II the amendment tothe people. The
language 1T the constitution may well bear
this Interpretation. The Language ~ And
II the pclplc shall approve aud mtify such
amendment, or amendments, by a majority
" all the citizens of the State voting foi
representatives voting In their favor, such
amendment, ur amendments, shall become d
part uf the constitution"
10 II argued that the submission Of an
amendment, ALREADY adopted BY the two nj
the three necessary steps, a. the people, u a.
rcc whether they will ratify u by the major.
ity of those voting Tor representatives, nnd
thus perfect u by this third step aud that,
therefore, no negative vote was contcm
/ plated, a. II must have u fixed anirmntiv,
vote. In support 1T this Argument we arr
referred IN the fact that, IN iHi2, the lcgis
laturc submitted Ia the people for mtitica
ton two proposed amendments, after they
hal passed the tir-t two steps, and that tho
affirmative vote only WIS taken, nnd nu mega.
tive vote NJ all This was under the consti
ton Of 1884 Hut. ~ before shown, this wa'
identical with the prrscnt constitution ~ "a
amendments a. hc made In this way. III,
amendments proposed were for the cleo.
ton II judge, and attorneys general by III,
people, aud Tor forming new counties with
less territory Than required by the constiiu,
ton. The net ut submission was passed fch.
runry ?, 1872, and u chapter ~, 81 the Act,
Of 1912 Page les. The preamble ncitc,
the agreement " the two Legislatures To Nv,
amendments. aud concludes M follows
(which proposed amendments have now "a
he submitted Ia the people Tor their mtiiica
ton or rejection"
SECTION I provides for the submission nj
the general election for Governor. Congress
and Legislature 10 he held In August 1855